Intended to be hurtful

Andrew Koppelman

I promised in my previous post to say something about the hurt to gay people of the discrimination that would be permitted if, as I advocate, religious objectors are exempted from laws banning discrimination on the basis of sexual orientation.

It is possible for gay people and conservative Christians to live together, each following their own deepest allegiances. But the coexistence that this entails will necessarily be painful for both. The only way to achieve comfort for either would be to make the other disappear or pretend to disappear. Because that is not appropriate, there is no good way to prevent this kind of hurt.

There will be times when it is indeed necessary to silence one of the parties to this dispute: when there is a likelihood that the speech will involve an abuse of power, or when there is an unusually vulnerable audience. But when neither of these is present, the law, and more generally those wielding power in our society, should try to contain the tension between the two views, rather than trying to silence either.

The difficulty of achieving such coexistence is starkly presented in Peterson v. Hewlett-Packard Co., in which the Ninth Circuit Court of Appeals upheld the dismissal of a claim of religious discrimination.

Richard Peterson had been an employee of Hewlett-Packard’s office in Boise, Idaho for more than twenty years when his dispute with his employer arose. The company, as part of a workplace diversity campaign, began displaying “diversity posters” that included supportive descriptions of the company’s gay workers. Peterson, who described himself as a “devout Christian,” thought that he had a duty “to expose evil when confronted with sin.” He responded to the posters by placing biblical verses on an overhead bin in his work cubicle, in type large enough to be visible to passersby, which included coworkers and customers. Among these was the following passage from Leviticus 20:13: “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be put upon them.”

Hewlett-Packard had an anti-harassment policy that prohibited “[a]ny comments or conduct relating to a person’s . . . sexual orientation . . . that fail to respect the dignity and feeling [sic] of the individual.” Peterson’s supervisor removed the materials from his cubicle, and in the next several days he attended a series of meetings with managers. The Biblical passages, he explained, were “intended to be hurtful. And the reason [they were] intended to be hurtful is you cannot have correction unless people are faced with truth.” He expressed his hope that gay co-workers who read the passages “would repent (change their actions) and experience the joys of being saved.”

Peterson refused to take down his Bible verses unless Hewlett-Packard took down its posters. Hewlett-Packard gave him time off with pay to reconsider his position, but when he returned to work, he posted the verses again and refused to remove them. He was fired for insubordination. His suit for religious discrimination was rejected on summary judgment in federal district court. The Ninth Circuit affirmed.

As a legal matter, the courts certainly got it right: Peterson was not subjected to discrimination on the basis of religion, and Hewlett-Packard had the right to fire him. And yet, I wonder whether firing him was the most appropriate course of action for Hewlett-Packard. In light of its diversity campaign, Peterson was obviously an outlier, someone whose views did not represent those of the company. Judge Reinhardt, writing for the Ninth Circuit, placed considerable weight on “Peterson’s intention that his postings be ‘hurtful,’” and concluded that an employer need not “permit an employee to post messages intended to demean and harass his co-workers.”

Circuit Judge Reinhardt’s view is far too conclusory. He presumes that it is never appropriate, in civil society, for someone to say things that he knows to be hurtful to others. But this conclusion is morally and politically loaded. It presumes that none of us need to hear things that will hurt us.

Reinhart’s argument draws its power from the analogy with racism: people should not be subjected to ideologies that demean them. In the same way that racism has no legitimate place in the public sphere, one might think that heterosexism should be eradicated. There is a powerful case to be made for the eradication of racism, to the extent that this can be done consistently with free speech guarantees—and of course such guarantees do not apply in the workplace. The First Amendment does not protect you from being fired for your opinions. But the gay rights issue is different. The racism analogy has some power; much of the antigay animus that exists in the United States is just like racism, in the virulence of the rage it bespeaks and the hatred that it directs toward those who are its objects. Not all antigay views, however, deny the personhood and equal citizenship of gay people. Certainly Peterson’s views did not do that. There is a serious discussion to be had here about sexuality and morality. Peterson’s views do not place him beyond the pale of civilized discussion.

It is a disputed question whether the specific hurtful things that Peterson had to say were sound enough to be worth hearing. It is a question about which the state properly ought to be agnostic. Our society’s most basic moral traditions are deeply divided about the proper answer to that question. We need to keep talking about it. The conversation is not always a pleasant experience. And it is fragile. It will shut down if either side uses its power to coerce the other to shut up. Gay people have been for a long time, and sometimes still are, subjected to just this kind of silencing.

Hewlett-Packard had enormous leverage over Peterson. It is not a light thing to fire someone from a job he has held for 20 years. This is the kind of sanction that is likely to drive dissenters into the closet. And, as gay people know so well, the closet is not a healthy place to be.
Posted 4:47 PM by Andrew Koppelman [link]